Docket:
IMM-1111-13
Citation: 2013 FC 1172
Montréal,
Quebec, November 19, 2013
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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LUIS OSORIO LOPEZ
CORA CANCINO DIAZ
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Applicants
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The Applicants seek a judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA] of a decision of an Immigration Officer, dated January 23,
2013, refusing the Applicants’ application for permanent residence on
humanitarian and compassionate grounds [H&C application] pursuant to
section 25 of the IRPA.
II. Background
[2]
The Applicants, Mr. Luis Osorio Lopez and Ms. Cora Cancino Diaz, are Mexican citizens. They have nine children who live in Canada as
Canadian citizens or permanent residents.
[3]
They arrived in Canada on May 16, 2009, and
applied for refugee protection in December 2009. This application was rejected
on August 12, 2011.
[4]
The Applicants also applied for a Pre-Removal
Risk Assessment, which was also rejected on March 28, 2012.
[5]
Neither decision was challenged.
[6]
On November 7, 2011 the Applicants submitted an
H&C application on the basis that they are elderly and have no one to
provide for them in Mexico.
[7]
On January 23, 2013, the Officer refused the
Applicants’ H&C application.
III. Decision
under Review
[8]
The Officer reviewed the circumstances of the
Applicants’ H&C application and determined that their personal circumstances
could not justify a statutory exemption under section 25 of the IRPA.
Despite the numerous support letters submitted by the Applicants’ children, the
Officer found that they had not provided sufficient evidence of unusual and
underserved or disproportionate hardship if returned to Mexico.
[9]
Based on the evidence before him, the Officer
observed that the Applicants would not, as a result of their advanced age, be
victims of discrimination or encounter other difficulties if returned to
Mexico.
[10]
Under the heading of “Établissement au Canada”,
the Officer further noted that the Applicants had provided no evidence that a
rupture from their family in Canada would cause excessive difficulties for
them. On the contrary, the Officer stated that the Applicants had successfully
lived without most of their children for the majority of their lives in Mexico,
as their children began immigrating to Canada in 1983. There was no evidence
that the Applicants were not able to provide for themselves after the departure
of their children from Mexico. They also managed to remain in contact with
their children in Canada through regular visits. The Officer concluded that the
Applicants had the option to continue visiting Canada on a super visa, which
would allow them to remain in Canada for 2 years at a time.
[11]
In addition to the Applicants’ establishment,
the Officer also considered the best interest of their grandchildren; however,
he found that there was insufficient evidence provided as to the relationship
between them. Moreover, the Officer doubted that the removal of the Applicants
would jeopardize the well-being of their grandchildren in any significant way,
as the grandchildren were now teenagers and adults and benefited from an
already large family network in Canada.
[12]
Finally, the Officer assessed the Applicants’
submissions regarding their health. The Officer found that there was no
evidence on file to corroborate that the Applicants were in poor health. The
Officer also noted that there was no evidence on file that the Applicants would
not be able to access medical services in Mexico or that they would be unable
to continue any ongoing medical treatments if returned to Mexico.
[13]
Based on the above, the Officer determined that
the Applicants did not meet the requirements of the IRPA to apply for
permanent residence from within Canada.
IV. Issue
[14]
Did the Officer err in assessing the hardship
the Applicants would face if returned to Mexico?
V. Relevant
Legislative Provisions
[15]
The following legislative provision of the IRPA
is relevant:
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25. (1)
Subject to subsection (1.2), the Minister must, on request of a foreign
national in Canada who applies for permanent resident status and who is
inadmissible — other than under section 34, 35 or 37 — or who does not meet
the requirements of this Act, and may, on request of a foreign national
outside Canada — other than a foreign national who is inadmissible under
section 34, 35 or 37 — who applies for a permanent resident visa, examine the
circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or obligations of this Act if the Minister is of the opinion that it
is justified by humanitarian and compassionate considerations relating to the
foreign national, taking into account the best interests of a child directly
affected.
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25. (1)
Sous réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger
se trouvant au Canada qui demande le statut de résident permanent et qui soit
est interdit de territoire — sauf si c’est en raison d’un cas visé aux
articles 34, 35 ou 37 —, soit ne se conforme pas à la présente loi, et peut,
sur demande d’un étranger se trouvant hors du Canada — sauf s’il est interdit
de territoire au titre des articles 34, 35 ou 37 — qui demande un visa de
résident permanent, étudier le cas de cet étranger; il peut lui octroyer le
statut de résident permanent ou lever tout ou partie des critères et
obligations applicables, s’il estime que des considérations d’ordre humanitaire
relatives à l’étranger le justifient, compte tenu de l’intérêt supérieur de
l’enfant directement touché.
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VI. Position of
the Parties
[16]
The Applicants argue that the Officer ignored the
evidence they provided. They submit that the evidence on the record clearly
demonstrates that they are afraid to return to Mexico because none of their
children live there; and, therefore, no one is able to provide for them.
[17]
The Applicants stipulate that this factor, when taking
into account their age and fragile health, establishes that their return to Mexico would have an unreasonable impact on them, and that these circumstances are beyond
their control.
[18]
The Applicants allege that the Officer misunderstood
the basis of their fear of returning to Mexico. They explain that it is not the
absence of medical assistance that they fear if returned to Mexico, but rather
the absence of family members to provide for them.
[19]
The Applicants submit that the Officer failed to
consider their financial dependence on their children and whether support is
available in Mexico for them. They claim that the Officer also failed to
consider that they are de facto family members within the meaning of section
12.6 of Inland Processing 5 Guidelines [Guidelines].
[20]
The Applicants do not contest the Officer’s findings
with regard to the best interest of their grandchildren.
[21]
The Respondent submits that the Applicants did not
provide sufficient evidence to substantiate their allegations; and, thus,
failed to meet the burden to prove they would suffer unusual and underserved or
disproportionate hardship. The onus rested entirely upon the Applicants.
[22]
The Respondent asserts that the Applicants did not
provide any evidence that demonstrates that they would encounter any unusual
difficulties or be subject to discrimination in Mexico due to their age.
[23]
The Respondent also specifies that no medical
documentation was submitted to corroborate that the Applicants are presently
ill, in need of treatment or that medical services would not be available for
them in Mexico.
[24]
The Respondent further submits that the Applicants did
not provide evidence that they were financially dependent on their children in
Canada, and notes that the male Applicant has a brother and daughter who may
still reside in Mexico.
[25]
Citing Odafe v Canada (Minister of Citizenship and
Immigration), 2011 FC 1429, the Respondent contends that this general lack
of evidence made it impossible for the Officer to conduct the analysis that the
Applicants are now seeking, and that they must bear the consequences of failing
to provide sufficient evidence to support their claim.
[26]
In reply to the Respondent’s memorandum, the Applicants
state that it is incorrect for the Respondent to claim that they still have
family members in Mexico, as the Officer’s reasons only refer to those family
members as “living outside Canada”, without reference to where they live.
[27]
The Applicants also reiterate that the Officer did not
consider their dependency on their children in Canada in accordance with the
Guidelines.
VII. Standard of Review
[28]
The standard of review applicable to a decision
relating to an H&C application is that of reasonableness (Ramirez v
Canada (Minister of Citizenship and Immigration), 2006 FC 1404, 304 FTR
136; Kisana v Canada (Minister of Citizenship and Immigration), 2009 FCA
189, [2010] 1 FCR 360; Frank v Canada (Minister of Citizenship and
Immigration), 2010 FC 270 at para 15).
[29]
A heavy burden rests on an applicant to satisfy the
Court that a decision under section 25 requires its intervention (Mikhno v
Canada (Minister of Citizenship and Immigration), 2010 FC 386; Cuthbert
v Canada (Minister of Citizenship and Immigration), 2012 FC 470, 408 FTR
173).
VIII. Analysis
[30]
The jurisprudence on H&C applications is clear: section
25 of the IRPA is an exceptional provision. It is an exemption that is
granted only in circumstances where an applicant can prove that he/she would
face “unusual and undeserved or disproportionate hardship” if required to file
an application for permanent residence from the country of origin. It is the
applicant who has the burden of providing clear and convincing evidence of such
hardship.
[31]
As the onus of establishing that H&C grounds exist
rests with an applicant, courts must refrain from reweighing the different
grounds relied upon. As stated in Lee v Canada (Minister of
Citizenship and Immigration), 2005 FC 413:
[10] … the
weighing of relevant factors is not the function of a court reviewing the
exercise of ministerial discretion. Therefore, as long as the totality of the
evidence was properly examined, the question of weight remains entirely within
the expertise of the immigration officer. …
[32]
In the present case, the Court finds that the totality
of the evidence was examined in good faith but not reasonably. The Officer did
not fully consider the relevant factors set out in the Guidelines and arrived
at a conclusion which is not supported by the evidence on the record. The
Officer was to consider the Applicants’ establishment in Canada, their financial dependence on their family, the best interest of their
grandchildren, the country conditions of their country of origin and the
resulting degree of hardship they would face if returned.
[33]
With regard to their establishment in Canada, the
Applicants did not provide any evidence to the Officer that they were dependent
on their family in the past or that they had not provided for themselves when
they were in Mexico; the evidence on record simply suggests that they would “not
be a burden on the government as they can support themselves” [Translated]
(Certified Tribunal Record [CTR] at p 83); that is speaking for the past;
however, the growing age factor of the aging Applicants with the passage of
years suggests that their situation appears to have indeed changed and where
they would not have been dependent in the past, the situation of dependence has
in fact changed in the present. It would therefore appear to stem from the file
that the Applicants are now individuals differently situated from whom they had
been in the past in that they had not been a burden on their society in their
country of origin previously, yet they would not appear to be able to look
after their needs at the present time. The support letters provided by the
Applicants’ family clearly indicate that they are willing to support the
Applicants if they are accepted as permanent residents in Canada; that, again, appears
to demonstrate clearly from the evidence in the file that the Applicants are
living with their children and grandchildren in the same household in Canada,
whereas if in Mexico it would mean subsidizing one more household for the
children of the Applicants which it is suggested is much less or not at all
feasible from statements made by the Applicants’ children.
[34]
The Applicants, with the passage of time and advancing
years, did provide supporting evidence to demonstrate that their advanced age in
their twilight years and declining health would cause an unusual or
disproportionate hardship on them if returned to Mexico. The evidence submitted
by the Applicants in this regard is the support letters from the Applicants’
children which speak of the Applicants’ advanced age and the fact that they are
at a time in their lives where dependence becomes more the norm; that is in
addition to the attachment to the family members, recognizing that all nine of
their children as well as their grandchildren reside in Canada. Therefore, the
Officer’s assertion and insinuation that if the Applicants have managed since
1983, why would they not be able to do so now? Well, thirty years have passed
since then and the passage of time takes its toll wherein they no longer appear
to be able to manage and subsist on their own, whereas when younger that was
not the case. The notorious passage of time which does not need evidence to
substantiate appears to have taken its toll where they were able to travel
there and back previously, that appears to be an option that has declined after
their last arrival to be reunited with their family in Canada.
[35]
It was unreasonable, having regard for the evidence as
a whole, for the Officer to determine that the separation of the Applicants from
their family would not cause unusual and undeserved or disproportionate
hardship. At this stage in the life of the Applicants, it would appear to cause
unusual and undeserved or disproportionate hardship to the Applicants; whereas,
it would not appear to create an undue burden either of a financial nature or
create an excess of such on health services in Canada further to the
affirmations (and sponsorship application) of their family in Canada.
[36]
The Court recognizes that the Applicants have lived
with their children in Canada for a number of years now; although they had
spent decades living in Mexico without their children since 1983. There are
clear arguments and evidence on the record that demonstrate that the degree of
hardship faced by the Applicants would be greater than what they have
habitually faced since their children immigrated to Canada.
[37]
The Court finds that the Officer’s reasoning , when
read together with his conclusions, falls outside of a range of possible
outcomes, when read together with Guidelines 12.5, 12.6, and 12.8 to which
consideration should be given when grandparents, in the circumstances of the
Applicants, live with their children and grandchildren. If humanitarian and
compassionate considerations are not applied in circumstances described in the
file, then the very reasons for the legislation and policy behind them would
not appear to be given their proper due. This case is a case onto itself, “un
cas d’espèce”, based on its own facts which must be read in complete context
rather than dissected piecemeal, and, thereby made devoid of its whole, wherein
it becomes devoid of its overall substance and meaning of the very narrative from
which it flows.
IX. Conclusion
[38]
For all of the above reasons, the Applicants’ application
for judicial review is granted.
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